Chaudhary v Medical Board of Queensland [2012] QCAT 172

CITATION: Chaudhary v Medical Board of Queensland [2012] QCAT 172 PARTIES: Dr Haroon Chaudhary (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR043-12 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President DELIVERED ON: 20 April 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Both parties have leave to be legally represented in these proceedings. CATCHWORDS: LEGAL REPRESENTATION – where Board’s application opposed by self-represented practitioner – where Board a state agency required to abide by model litigant principles – whether complex question of law – where implications for other applications – where some similarities to disciplinary proceedings – Tribunal’s obligations to all parties in relation to the proceedings Queensland Civil and Administrative Tribunal Act 2009, ss 28(2)(3)(a), 29(1)(a), 43(1), 43(2)(b)(ii), 43(3) Model Litigant Principles APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Dr Chaudhary has practised in Queensland under special purpose registration (later limited registration) since 2 August 2002. On 20 January 2012, the Board notified him that it had refused his application to renew his registration. In summary, the Board did so because Dr Chaudhary had failed to qualify for general or specialist registration and because of notifications made to the Board about Dr Chaudhary’s practise in relation to drugs of dependency. [2] Dr Chaudhary has applied to review that decision. The Board seeks leave to be represented in the proceedings. Dr Chaudhary has indicated he does not have the means to engage a lawyer. During directions hearings, the Tribunal drew to Dr Chaudhary’s attention potential sources of legal assistance. Dr Chaudhary has opposed the Board’s application. The Tribunal has decided to grant leave to both parties to be represented, for the following reasons. [3] Because this is not a disciplinary proceeding, the parties do not have a right to representation without leave of the Tribunal.1 [4] The question of legal representation in a proceeding before QCAT is governed by s 43 of the Queensland Civil and Administrative Tribunal Act 2009. The main purpose of that section is to have the parties represent themselves unless the interests of justice require otherwise (s 43(1)). [5] That section specifies a number of circumstances the Tribunal may consider as supporting leave being given. Relevantly, for this application, are: “(a) the party is a State agency; (b) the proceeding is likely to involve complex questions of fact or law; …”2 [6] The fact that a party is a State agency does not, of itself, justify representation; otherwise, leave of the Tribunal would not be required. However, it is relevant that a State agency is expected to conform to Model Litigant Principles. An extract from the most recent statement of those principles, as revised on 4 October 20103, follows: 1. The State and all agencies must conduct themselves as model litigants in the conduct of all litigation by adhering to the following principles of fairness: • acting consistently in the handling of claims and litigation 1 Queensland Civil and Administrative Tribunal Act 2009, s 43(2)(b)(ii) provides a party may be represented by someone else if the proceeding relates to a disciplinary action or reviewing a decision about taking disciplinary action against a person. 2 Queensland Civil and Administrative Tribunal Act 2009, s 43(3). 3 Model Litigant Principles (revised as at 4 October 2010). (http://www.justice.qld.gov.au/__data/assets/pdf_file/0006/43881/20100505095729872. pdf) -- 2 of 4 -- 3 • dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation • endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate • where it is not possible to avoid litigation, keeping the costs of litigation to a minimum • paying legitimate claims without litigation, including making partial settlements of claims, or interim payments, where liability has been established and it is clear that the State’s liability is at least as much as the amount to be paid • not seeking to take advantage of an impecunious opponent • not contesting matters which it accepts as correct, in particular by: - not requiring a party to prove a matter which the State knows to be true - not relying on purely technical defences where the State will suffer no prejudice by not doing so - not contesting liability if the State knows that the dispute is really about quantum • not instituting and pursuing appeals unless the State believes that it has reasonable prospects for success, or the appeal is otherwise justified in the public interest. 2. The State must behave as a model litigant in the conduct of all litigation, including significant litigation, by adhering to the following principles of firmness: • appropriately testing all claims • contesting all spurious or vexatious claims • claiming legal professional privilege where appropriate • claiming public interest immunity to protect confidential information such as Cabinet papers in appropriate cases • seeking security for costs where appropriate and pursuing costs when it is successful in litigation, which will assist in deterring vexatious proceedings from being instituted against it • not seeking to take advantage of an impecunious opponent • relying on available statutes of limitation, which have been enacted to protect a defendant from unfair prejudice • acting properly to protect the State’s interests. 3. Alternative dispute resolution • The State is only to start court proceedings if it has considered other methods of dispute resolution (for example, alternative dispute resolution or settlement negotiations). • When participating in alternative dispute resolution, the State must ensure that its representatives: -- 3 of 4 -- 4 (a) participate fully and effectively, and (b) have authority to settle the matter so as to facilitate appropriate and timely resolution of a dispute. [7] It is the experience of the Tribunal that the practitioner boards and the representatives they regularly engage, including the firm retained in these proceedings, conduct themselves in accord with those principles. The Tribunal expects and receives non-partisan assistance from their representatives about the laws, policies and procedures that apply to registration matters, regardless of whether the other party is represented. In past matters, this assistance has enhanced the information available to the Tribunal. [8] Although the Board submits the proceeding will involve complex questions of fact and law, there is little complexity about this matter. It is relevant, though, that the decision may have implications for decisions about other practitioners in a similar position to Dr Chaudhary. [9] Further, the proceedings raise similar issues to those in disciplinary proceedings, in which the parties have a right to be represented. The Board’s reasons raise questions of Dr Chaudhary’s competence to be registered and, specifically, his conduct in relation to dispensing drugs of dependence. [10] Taking each of those matters into account, it is in the interests of justice for the parties to be granted leave to be legally represented. [11] The Tribunal must act fairly and observe the rules of natural justice.4 It has a responsibility to ensure that all parties understand the practices and procedures of the Tribunal, the nature of any assertions made and their legal implications, and any decision of the Tribunal.5 This obligation is owed to all parties, represented or not. [12] Although Dr Chaudhary has indicated he does not have the means to engage a lawyer, the Tribunal has decided to grant leave to him as well, in case his circumstances change or he is able to obtain pro bono legal assistance. 4 Queensland Civil and Administrative Tribunal Act 2009, s 28(2)(3)(a). 5 Queensland Civil and Administrative Tribunal Act 2009, s 29(1)(a). -- 4 of 4 --